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Lord Clement-Jones: My Lords, perhaps I may intervene, having been provoked by the Minister. The noble Lord will remember an amendment we put

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forward for merging responsibility for health and social services in the Health Bill. That is a commitment to local democracy.

Lord Hunt of Kings Heath: My Lords, as regards the arguments put forward on such Bills, if we were to amend in that way it would so constrain the role of local authorities that they would hardly consider the position democratic. How many times has the noble Lord argued that "guidance" should be statutory guidance? I do not seek to make a political point. I simply seek to show that most of the pressures on Government in relation to the National Health Service are to ensure national consistency and high standards of services. That is what we wish to achieve: national consistency, national standards and a National Health Service. However, within that—I agree with many of the contributions made—we have to allow space at local level for people to innovate and lead change.

While I do not think that we should alter the fundamental principle of central accountability, we understand that as well as modernising the health service we must modernise the decision-making process. We have to open up that decision-making process at national and local level. We have to involve the public in decisions not just about their own care but also about health policy at local level generally. The creation of modernisation action teams as part of the national plan allows us to look specifically at how we can better involve patients and the public.

I agree with my noble friend Lord Harris about the need to avoid paternalism and to listen seriously. The right reverend Prelate the Bishop of Birmingham explained one of the new innovative techniques which can be used in trying to reach consensus at local level about a major change in services. Clearly, we have to do more.

The noble Baroness, Lady Northover, mentioned complaints. We have commissioned an independent evaluation of the complaints procedure. That is now over half way through. It would be premature to begin implementing any changes in advance of the final report of the evaluation team, which we shall consider carefully.

The question of openness was raised. We are committed to openness in the National Health Service. That is why one of the first actions of the Government was an instruction to trust boards to ensure that their meetings were in public. I applaud the activities of CHCs, which have also encouraged a greater degree of openness in the dialogue between themselves and the NHS.

My noble friend Lady Massey raised important points in relation to inequalities in health issues. I believe that Our Healthier Nation, the health improvement programmes, health action zones and the new flexibilities in terms of partnerships between the health service and local government will allow us to address many of these troubling issues.

A study by Ziggi Alexander identified the issue of statistics in relation to the Department of Health. It is a matter we are considering carefully.

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The appointment of an NHS chief executive is to ensure that at the centre we have a co-ordinated approach to the way in which we discharge our accountability and manage the National Health Service. Far from creating the centralist impetus that noble Lords fear, it will enable us to get the right leadership at national level which then allows more space for people at the local level to lead change and innovation.

The clock is against me. In relation to community health councils I recognise the extremely important role they have played over 25 years. But there is a widely held belief, not least among the CHCs themselves, that they need to change to bring them up to date with the new, modern NHS. The patient empowerment modernisation action team which is working in relation to the national plan will consider patient empowerment, public involvement and the future role that CHCs might play.

In conclusion, I believe that Will Hutton's report is extremely interesting and stimulating. I can assure the House that it will not be kicked into the long grass. It will be part of the important discussions we are having in relation to empowering the patient and the public. At the end of the day, the Government need to ensure true, equal access to consistent services. I and the Government will continue to argue for the principle of equality and the pursuit of national standards just as passionately as Nye Bevan himself did in 1948.

Regulation of Investigatory Powers Bill

8.35 p.m.

House again in Committee on Clause 2.

[Amendments Nos. 23 and 24 not moved.]

On Question, Whether Clause 2 shall stand part of the Bill?

Lord Cope of Berkeley: I indicated that I wished to speak to this Motion, and to Amendments Nos. 212, 214 and 218. The effect of the three amendments, taken with the proposal that Clause 2 shall not stand part, would be to move all the subsections in Clause 2 into Clause 72.

Noble Lords who were present at Second Reading, or have read the debate in Hansard will know that it was marked by a most interesting and unusual speech by the noble and learned Lord, Lord Brightman. From his great legal background, he criticised the fact that there are two general definition clauses: Clauses 2 and 72. He said, rightly, that in most Bills there is a general definitional clause at the end of the Bill, and that other phrases and words are defined in the clauses in the parts of the Bill to which they relate so that they can be seen in the context of the Bill. However, the general definitions are given usually in a definitional clause at the end for the convenience of those who use Acts of Parliament.

I agree with that. It was a powerful speech. It moved the Minister to express sympathy with what the noble and learned Lord said. He undertook to consider the

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matter. Since then there has been an exchange of correspondence of which I have seen part; I may not have seen all of it. The Minister did his best to justify the inclusion of these definitions in Clause 2 on the grounds that they were important to the understanding of Clause 1 and the basic approach to the Bill; that they were fundamental and of great importance. I accept that some of the definitions in Clause 2 could be regarded in that category although others seem somewhat basic. As we discussed earlier, the definition of "postal service" means the transmission of postal items.

I see very little reason why the large part of the definitions in Clause 2 should not be more conveniently put into Clause 72. I will not go into the detail that the noble and learned Lord did at Second Reading, except to draw attention to the fact that quite a lot of the words and phrases are again redefined in Clause 72 as having the meanings given to them by Clause 2. That is perhaps a useful indexing, but it also demonstrates a certain duplication of effort.

In the years when I was a Minister in another place, and since I have been here, I have many times admired the work of parliamentary counsel, and I entirely agree with the comment made by the noble Lord, Lord Phillips, who said what a huge challenge it must have been for parliamentary counsel to face a Bill of this character, with such a complex technical background, such as the Internet, and reduce it to workable legal prose. But at the same time I have also had occasion over many years to become frustrated with the complexities of the legal drafting that we see in these Bills. It sometimes seems to me to be totally unnecessary.

We had a brief exchange earlier on, which I did not press, because I did not want to take up the time of the Committee, over the definition of "communications data". It is defined in Clause 20 as:

    "In this chapter 'communications data' means any of the following—"

I suggested that it might be preferable to say, "In this part". In Chapter I "related communications data" is defined as:

    "so much of any communications data (within the meaning of Chapter II of this Part)"—

so one finds oneself going backwards and forwards from one part and one chapter to another in order to find the definitions that one needs.

My noble friend Lord Renton many years ago wrote an excellent report on the drafting of Bills which made a whole series of recommendations, very few of which have been consistently followed since then. One of them was about where to find definitions and how it was easier to have definitions in a place where they could be found. I do not believe that it matters very much whether that place is habitually at the beginning of Bills or habitually at the end of Bills. It would not matter. If the habit was to have them at the beginning of Bills, that would be fine. We could define all the words and then say what the Bill means.

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Our habit has been—and it is an alternative approach to the system—to have all the definitions at the end of the Bill and to approach it in that way. That has been our habit, and it is one to which we should broadly stick. It is inevitable in a Bill of this complexity that some definitions and some important items shall be incorporated in the body of the Bill in order to be able to follow it and explain it. However, if parliamentary counsel with much more experience of the drafting of Bills could go through these Bills and look at the definitions, they could be improved no end.

To give another example which came up earlier, why is "postal service" defined by reference to "postal items" in Clause 2(1) of the Bill and "postal item" is not defined until Clause 2(10)? It means that one has to look for it and almost read the whole of the Bill in order to locate the bits which define other matters. They are not in a neat place, where one can put one's finger on them without difficulty.

I accept all the difficulties that are involved in the drafting of a Bill like this. However, I also believe that if the parliamentary counsel paid more attention to the users of Bills and trying to get a uniform system of placing the definitions, in this case, in a convenient place, it would be to the benefit of us all.

Before I sit down, I have to confess to your Lordships that when I was a Minister handling Bills in Parliament, I found myself on a number of occasions in a situation of arguing with parliamentary counsel in an effort to make the wording a little more straight forward. There were a number of occasions on which I had some discussion on the matter with the relevant lawyers—usually the departmental solicitor, because it is quite difficult to get through to the parliamentary counsel themselves—and I almost invariably lost. It may be that the Minister has lost on this occasion. Nevertheless, the noble and learned Lord, Lord Brightman, had a very good point.

8.45 p.m.

Lord McNally: The noble Lord, Lord Cope, has obviously come back from dinner in a mellow mood. He has had a few kind words to say about parliamentary counsel; he is sympathetic to the problems of the Minister; he has made a few confessions from his own days as a Minister. I suspect that it all bodes well for the next four or five hours. I had hoped that he would have come back in a slightly more robust mood, which would perhaps indicate that we were not going to send this clause back because of the issues raised by the noble and learned Lord, Lord Brightman. Although they are valid reasons, I believe that the definitions could be put together in a clearer way.

What this definitions clause has revealed is the true nature of this Bill. The real problem—and I suspect that it will recur for the Minister—is that this is a pantomime horse of a Bill. The front end is consolidation, as he has referred to it a number of times, and that is why we get constant references to telecommunications and postal systems which all hark

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back to legislation that is 15, 20, 30, 40 or 50 years old. At the back end of the horse is an attempt to deal with new technology. I suspect that one of the problems that we will continually encounter is the fact that the definitions, the scopes, the powers are either carry-overs from old technology or attempts to address the new ones. I must say that, even at this early stage, the joining is beginning to show. It might have been better for this clause to be taken back so that the definitions which are already shown to be inadequate could be better defined.

The approach, which is not technology neutral but technology inadequate, could be better shaped up, so that we would get a better sense of what was termed before the dinner hour as "future proofing". It is a concern of many of those who have advised us that we are agonising over powers and the contents of this Bill which may not last more than a few months in terms of the development of the technologies of the industries that we are trying to control.

I would therefore have been keen to look at these definitions and this whole section as covered by Clause 2 with a much greater view to the future, to make sure that, even as we speak, technology is not bypassing the legislation, and to ensure that, in allowing it to bypass us, we are not at the same time adding cost to industry and putting our faith in obsolete ways of trying to deal with these problems. Law enforcement perhaps has to come to terms with a new regime of transmitting information which is not susceptible to the old interventionist ways of controlling it, and I believe that future proofing may need a different approach.

In case that provokes the noble Lord, Lord Cope, to call a Division at this stage, I must say that I believe that we should do better to keep our powder dry for a time in the future when we may look at the clause again to see whether it is worthy of staying in the Bill.

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